Citation Nr: 1327208
Decision Date: 08/26/13 Archive Date: 08/29/13
DOCKET NO. 10-38 568 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York
THE ISSUE
Entitlement to an initial evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD), with depression and obsessive compulsive disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
R. Dodd, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1987 to July 1987 and from September 1990 to May 1991.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision from the Regional Office in Buffalo, New York (RO) which granted the Veteran service connection for PTSD with depression and obsessive compulsive disorder, with an evaluation of 30 percent. The Veteran filed a notice of disagreement (NOD) on August 2010. A statement of the case (SOC) was issued on August 2010 and the Veteran perfected her appeal with the timely submission of a VA Form 9 in September 2010.
A Board hearing was held before the undersigned in March 2011. A transcript of this hearing is of record. In July 2011, the Veteran submitted additional evidence with a waiver of initial RO consideration of such evidence. Further evidence was submitted consisting of a July 2011 letter from a Dr. J. S., a letter from the Veteran's employer and related documentation about her ability to drive, and a July 2011 letter from a Dr. J. G. Although no waiver of initial RO consideration accompanied this evidence, it appears from evidence listed on the Veteran's December 2011 rating decision, found in the Virtual VA paperless claims processing system, that such evidence had already been reviewed and considered by the RO. In August 2012, the Veteran submitted a private examination report from a Dr. J. W. However, no waiver of initial RO consideration accompanied this evidence and it does not appear from either the Veteran's paper or electronic claims file that the RO has previously reviewed or considered it.
A review of the Virtual VA paperless claims processing system revealed July 2011, December 2011, and September 2012 rating decisions on issues not pertinent to the present appeal.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. In particular, 1) the AMC should review the June 2012 VA examination report from Dr. J. W. that was received in August 2011 without a waiver of initial RO consideration, 2) obtain the Veteran's outstanding Social Security Administration (SSA) records, and 3) provide the Veteran with a new VA examination.
Remand may be required where the record before the Board contains insufficient medical information for evaluation purposes. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990).
First, remand is required to have the AMC review previously unconsidered evidence. The Veteran submitted the results of a private psychiatric examination, dated June 2012, in August 2012. This evidence was sent directly to the Board, but did not have an associated waiver of initial RO consideration. That additional evidence should be reviewed on remand. 38 C.F.R. § 20.1304 (2012).
Second, remand is required to obtain any outstanding SSA records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including records from Federal agencies, such as relevant SSA records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). The claims file shows that the Veteran was in receipt of SSA benefits via a February 2012 statement, but does not contain any other associated records. As such, remand is required to obtain the SSA records.
Third, remand is required to provide the Veteran with a contemporaneous VA examination. The Veteran was provided with a VA examination in January 2010. At that examination, the examiner noted that the Veteran believed her symptoms were stable, as she had an improved understanding of them. There were subjective complaints of irritability, hyper startle response, overall heightened anxiety, a significant trust problem, and sleep disturbance. It was reported that the Veteran was working at a Sheriff's office and that she had difficulty with sexual assault cases and tends to isolate socially. On objective examination, the Veteran's attention and concentration appeared to be mildly impaired and her memory appeared to be impaired. It was also noted that she over washes in an obsessive-compulsive manner to alleviate anxiety symptoms. The Veteran also reported symptoms consistent with a panic disorder, thought disorder, or cognitive dysfunction. She also showed evidence of depressive episodes. The examiner diagnosed the Veteran with PTSD, a depressive disorder, and obsessive compulsive disorder. A global assessment of functioning (GAF) score of 50 was assigned overall due to the severity of her symptoms, to include suicidal ideation. Separately, her PTSD would have warranted a GAF score of 51 and her obsessive compulsive disorder would have warranted a GAF score of 55.
The Veteran contends that her service-connected PTSD with depression and obsessive compulsive disorder are worsening. In particular, in a September 2010 statement, the Veteran claimed that her condition was making her work environment more stressful and difficult. In a July 2011 statement from her psychiatrist, Dr. J. G., it was stated that the Veteran's symptoms had persisted and recently worsened. Dr. J. G. further recommended that the Veteran not work in any capacity. In another July 2011 statement from her neurologist, Dr. J. S., it was stated that the Veteran's PTSD had been combining with her service-connected epilepsy and memory loss to create difficulty communicating and multitasking, thereby rendering her unemployable.
Although the January 2010 VA examination was adequate in its application, its contrast with the contention that the Veteran's condition has worsened must be reconciled. See 38 C.F.R. § 4.71a , Diagnostic Code 9411. VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 § C.F.R. § 3.159 (2012). This duty to assist includes providing a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In this regard, VA must provide a new examination when a Veteran claims that a disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current state of the condition. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). As such, it is necessary to obtain a new examination in order to assess the current severity of the Veteran's PTSD.
Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review.
2. The AMC should review and consider the June 2012 private examination in its further adjudication of the Veteran's claim
3. Contact the SSA and obtain all medical records associated with the Veteran's disability award. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and documented for the record. Notice must be provided to the Veteran and her representative. The notice must contain the identity of the records, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim, notice that the Veteran is ultimately responsible for providing the evidence, and notice that the Veteran may provide alternative forms of evidence. Associate all documents obtained with the claims file.
4. After any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the current severity of the Veteran's PTSD. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.
In particular, the examiner is to discuss which symptoms may be attributable to the Veteran's PTSD in light of symptoms attributable to her service-connected epilepsy. Any allocation of symptoms or findings of the Veteran's current condition must be sufficiently explained.
5. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable.
6. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998).
7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).